In August 2020, the Fair Work Commission published a decision to insert Schedule I into the Real Estate Award. Schedule I provided award flexibility during coronavirus for commission-only arrangements.

Schedule I applied from the first full pay period starting 6 August 2020 and October 2021 was the last month that employers and employees could use Schedule I.

What applies now

Minimum entitlements for commission-only arrangements in the Real Estate Award are explained in clause 16 of the award.

What applied under Schedule I

Under Schedule I, if a commission-only employee’s work was impacted by coronavirus, adjustments could be made to the calculation of their Minimum Income Threshold Amount (MITA) for their annual review.

If an annual review of their commission-only arrangement occurred after 6 August 2020, then the calculation could be adjusted to exclude any of the months from May to October 2020. This applied if the employee’s work in those months was impacted by coronavirus.

When making a MITA calculation, the calculation had to be adjusted accordingly in proportion to the number of months excluded. If an employee’s review date fell part way through a month between May and October 2020, that month could only be excluded if the review was due after the 14th of that month.

Example: Calculating the MITA for annual review

Geoff is a commission-only sales representative. His annual review was due on 10 September 2020. Sales in his area were impacted by coronavirus in May, June, August and September 2020.

When Geoff’s income was calculated for the review, his commissions from May, June and August 2020 weren’t included. His commission for the month of July was included because his sales for that month weren’t impacted by coronavirus. The commission for the month of September can’t be excluded because the annual review was due before the 14th of that month.

His income for the rest of the year was compared to the MITA that would’ve applied for the remaining 9 months.

Employees also couldn’t be employed on a commission-only basis from 6 August until 1 November 2020, if they weren’t already employed on that basis on 6 August 2020.